The United States Supreme Court has granted cert in Apple v. Samsung on the question of the apportionment of the infringers profits for design infringement.
The specific question to be considered (PDF) is:
Where a design patent is applied to only a component of a product, should an award of infringer’s profits be limited to those profits attributable to the component?
The case is on appeal from the Court of Appeals for the Federal Circuit decision of May 18, 2015 (PDF):
Finally, with regard to the design patents, Samsung argues that the district court legally erred in allowing the jury to award Samsung’s entire profits on its infringing smartphones as damages. The damages, according to Samsung, should have been limited to the profit attributable to the infringement because of “basic causation principles . . . .”
Section 289 now provides:
Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, …
The clear statutory language prevents us from adopting a “causation” rule as Samsung urges
(h/t Thomas Cotter’s Comparative Patent Remedies blog)